State v. Jessup

Court of Appeals of Oregon

State v. Jessup

120 P.3d 1257, 202 Or. App. 227, 2005 Ore. App. LEXIS 1323

CourtCourt of Appeals of Oregon

DecidedOctober 12, 2005

Docket0301-30518; A123246

StatusPublished

Cited by1 cases

This text of 120 P.3d 1257 (State v. Jessup) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Jessup, 120 P.3d 1257, 202 Or. App. 227, 2005 Ore. App. LEXIS 1323 (Or. Ct. App. 2005).

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Opinion

PER CURIAM

Defendant was convicted of two counts of first-degree criminal mistreatment, ORS 163.205, and two counts of felony fourth-degree assault, ORS 163.160. The trial court imposed departure sentences on each of the convictions based on a variety of departure factors, including that defendant knew or had reason to know of the victim’s particular vulnerability, OAR 213-008-0002(1)(b)(B). Defendant argues that, under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), the court erred in imposing departure sentences based on facts not found by a jury or admitted by defendant.

Although defendant did not advance such a challenge to the trial court, she argues that the sentences should be reviewed as plain error. Under our decision in State v. Ross, 196 Or App 420, 102 P3d 755 (2004), the sentences are plainly erroneous. For the reason set forth in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted of two counts of first-degree criminal mistreatment, ORS 163.205, and two counts of felony fourth-degree assault, ORS 163.160. The trial court imposed departure sentences on each of the convictions based on a variety of departure factors, including that defendant knew or had reason to know of the victim’s particular vulnerability, OAR 213-008-0002(1)(b)(B). Defendant argues that, under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), the court erred in imposing departure sentences based on facts not found by a jury or admitted by defendant.

Although defendant did not advance such a challenge to the trial court, she argues that the sentences should be reviewed as plain error. Under our decision in State v. Ross, 196 Or App 420, 102 P3d 755 (2004), the sentences are plainly erroneous. For the reason set forth in State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev allowed, 338 Or 488 (2005), we exercise our discretion to correct the error.

Sentences vacated; remanded for resentencing; otherwise affirmed.

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Bluebook (online)

120 P.3d 1257, 202 Or. App. 227, 2005 Ore. App. LEXIS 1323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jessup-orctapp-2005.

Opinion

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